Summer Reading: Judith Shklar's "The Faces of Injustice"

I recently read Judith N. Shklar's book The Faces of Injustice (Yale U.P., 1990). This excellent essay about the difference between misfortune and injustice would not appear to have much to do with government ethics. But there turns out to be much relevant food for thought.

The principal difference between misfortune and injustice lies in how people perceive and interpret events. Those who cause suffering have serious blind spots that make them interpret the event as unavoidable and unfortunate, when in fact they are responsible either for the event or for doing nothing to prevent or fix the situation that led to the event.

This difference is at the heart of the way high-level local officials deal with government ethics. They do not see their misuse of office as causing suffering. They say, to themselves and others, that what they do is in the public's best interest, implying that the public is wrong to see their misconduct as wrong and damaging.

They say that everything is going well, that there are just a couple of bad apples, not recognizing that, as Shklar wrote, "even when justice and fairness do prevail, they are undramatic and forgettable, while injustice is always felt keenly and memorably.” When it comes to prevention, officials often say that the regulation of ethical misconduct is expensive and unnecessary, even though it can increase the public's trust and participation in the management of their community, and these are priceless.

They say that corruption is based on an individual's character, that is, it is unavoidable and unfortunate (misfortune) rather than unprofessional and unfair (injustice) and, ultimately, damaging to the people in their community, in terms of money, pride, participation, and the attraction of businesses.

Another similarity between injustice and ethical misconduct is the way the injured parties deal with them. In different ways, the injured parties give in to hopelessness. Victims of injustice accept it as the way things are, or even blame themselves. This is certainly true of the poor.

Victims of ethical misconduct, that is, the public, tell themselves that all politicians are corrupt, and there's nothing you can do about it. They may vote in favor of a referendum creating an ethics program, but they don't really believe it will work. Yes, they're angry when it doesn't appear to make a difference, just as a member of a racial minority is angry when they're treated badly. But anger doesn't change things.

In a Huffington Post post this week, Trinity Washington University president Patricia McGuire says much the same with respect to the recent indictments and investigations of high-level District of Columbia officials:

Every citizen of the city pays a heavy price for the moral failures of our leaders. The solons of Congress [an ironic reference to the ancient Greek ethical reformer Solon] who have never respected the District of Columbia's fundamental freedom to govern itself now add "too corrupt" to their private list of the "toos" they chant about D.C. — too liberal, too urban, too Democratic, too black. Each new scandal adds fresh meat to the table of bigotry where throngs still feed regularly. ...

Curiously, and sadly, public outrage over the betrayal of Home Rule at the hands of its very stewards seems muted, a shrug not a scream. The pervasive disenfranchisement of D.C. citizens is clear in the largely passive reaction to each new indictment. We knew this was coming; there goes another one; what do you expect.

Another similarity between injustice and ethical misconduct is that, while there are thousands of pages written by political scientists and philosophers about justice, they rarely write about the effects of injustice (this is left to sociologists and psychologists), and while there are thousands of pages written by public administration professors about administrative ethics, there is little written about the effects of ethical misconduct on the public (not even the sociologists and psychologists have shown much interest).

We cannot have effective, comprehensive government ethics programs until we recognize the harm that is done by ethical misconduct, not just to the day-to-day functioning of government, which can go on despite it, but the many ways it harms the community, placing a divider between official and citizen, making people feel angry and helpless, making them passive and cynical, making unfairness seem the norm, and undermining our democracy. If this is not enough to convince officials to set up an effective, comprehensive government ethics program, then they clearly have no concern for the citizens in their community.

Passive Injustice
Another relevant issue raised by Prof. Shklar is passive injustice, "the refusal of both officials and private citizens to prevent acts of wrongdoing when they could and should do so. ... By passive injustice I do not mean our habitual indifference to the misery of others, but a far more limited and specifically civic failure to stop private and public acts of injustice. … when we do not report crimes, when we look the other way when we see cheating and minor thefts, when we tolerate political corruption, and when we silently accept the lies that we regard as unjust, unwise, or cruel. Public servants are even more likely to be passively unjust, being by training unwilling to step outside the rules and routines of their offices and peers, afraid to antagonize their superiors were they to make themselves unduly conspicuous. The resulting injustice is [due to] many hands in general, who need to be reminded constantly of the possible consequences of their inaction.”

Passive injustice allows ethical misconduct to occur. The existence of unwritten rules, the intimidation and fear, the misplaced loyalties of an organization lead to silence and acceptance of misconduct. Shklar believed that even citizens have an obligation not to be passively unjust. “Passive injustice is a strictly civic notion. It does not need the support of any particular moral philosophy … Passive injustice refers to our public roles and their political context — citizenship in a constitutional democracy."

With their fiduciary duties, government officials have a much stronger obligation. If even some of them were to accept this obligation and pay it more than lip service, there would be very little ethical misconduct. Then, only very bad apples would misuse their offices in any more than minor ways.

Shklar picked out attorneys as especially responsible for passive injustice. In proceedings, they act as insiders to whom it never occurs to protest against ethical misconduct. It’s a game for them, and winning is what matters. Government attorneys should not even care about winning their cases; this is not always the best, most fair thing for the community. And yet too rarely do they protest or prevent ethical misconduct.

Prevention
Shklar felt that we should not focus on the whys of misconduct, but rather on prevention: “The choice between punitive blaming and indifference can be made less drastic if we do not look for personal betrayal of trust, conspiracy, or culpable incompetence and concentrate more on failures to prevent avoidable mistakes with a view to making their recurrence less likely and repairing the damage as well as possible.” This is exactly the goal of a government ethics program.

Plato and the Unjust
Shklar discusses Plato's views on unjust people, which is amazingly similar to what psychologists are telling us today (see the section of my book Local Government Ethics Programs on Blind Spots). She says that Plato thought "that unjust people did not really understand what they were up to, did not act voluntarily, and were usually so misguided that they really deserved pity. They suffer from disordered psyches and are tormented by driving desires and rages that they are not able to satisfy or control. Irrationality, insolence, uncontrollable desires, aggressiveness, and sheer stupidity are all, in their way, psychic diseases that make us unjust, and we do such people no favor at all if we allow them to continue to live in such a state. ... [T]he unjust person must be punished and exorcised in order to purify him and the community, and punishment is the only hope of improvement, though it is also meant to teach others to avoid the same crimes.”

And she says that Plato took what I would consider to be a government ethics approach to misconduct, taking motive, and the idea of integrity, out of the equation: "[O]ne may not consider the unjust person as a whole but only those traits and acts that are relevant to decide a given case. Indeed, to look too deeply into the motives of those who take and get too much might lead to unfairness in judging."

Vengeance
I have often criticized approaches to ethical misconduct that are akin to vengeance, such as pension forfeiture, loss of office, and jail time. Shklar recognizes the problematic nature of vengeance, and expresses it well.

Probably nothing can assuage the sense of injustice as well as revenge, which is incompatible with justice as it is normally understood. Moreover, though we tend to experience injustice in particular in individual instances, justice must of necessity be general and social in its aims. ... [R]evenge is not detached, impersonal, proportionate, or rule-bound. It is because of its disorderly nature that … the law must weed it out. … Neither does justice wipe the slate clean. Revenge at least equalizes the wrongs … For most people retributive justice is justice, but it remains a frustrating substitute for revenge, neither eliminating nor satisfying its urging.

Conclusion
Shklar ended her essay with the following sad observation:

All public agents are alike in one respect: all have a wealth of excuses for the resentments they create. … They are usually invocations of circumstances, unavoidable error, or just a shifting of blame. Necessity seems to fence them in on all sides when they are asked to face the injustices for which they are directly or passively responsible. What their litany of evasions does reveal is a dreary moral and linguistic uniformity.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959